In case you missed it (some people don’t read on the weekends), I posted my response here. If you haven’t read it yet, I hope you will. I worked on it very hard, and tried to raise some unanswered questions and provide missing perspective in a respectful and constructive manner. (I am profoundly uninterested in starting some kind of “blog feud” with Balko over this.) I had a follow-up post here which featured an expert tentatively supporting Balko’s position (in the update).

It has now been three days, six hours, and 35 minutes (give or take a few seconds) since my original post and I am unaware of any reaction from Verdon, who is generally quick to render his opinion on any post of mine touching on Balko. Suspicious!!

Well, maybe I missed it. It’s possible.

I haven’t heard from Balko either, but I’m not going to call that “suspicious” because he’s not the one who accused me of a slow reaction to his article. He probably has better things to do than respond to me — and certainly, he has no particular duty to acknowledge my questions, legitimate though they seem to me. It’s just unusual for him not to quickly respond to any commentary from me on his work. Last night I thought maybe he hadn’t seen my posts, so I e-mailed them to him.

I have heard from someone, however: the defendant’s lawyer, who is threatening to file a (completely baseless) State Bar complaint against me.

The lawyer is Kathy Kelly of the Capital Post Conviction Project of Louisiana. That organization represents Jimmie Duncan, the Death Row inmate described in the article. In this comment to my original post, she implies that I have committed State Bar violations (which I most certainly have not) and threatens to file a State Bar complaint if I continue to contact witnesses on the case — in other words, if I continue to exercise my First Amendment rights. Excerpt from her comment:

As a lawyer you should no that you have no business talking to witnesses when you are not a party to this case. Cease immediately or I will file an ethics complaint with your state bar.

I told her: “I don’t intend to cease exercising my First Amendment right to speak about matters of legitimate public concern because some lawyer who is mis[re]presenting the content of my post threatens a bogus complaint to my State Bar.” I asked her to tell me what rule I had supposedly violated and she suddenly decided she had better things to do. After publicly implying that I had committed an ethical violation, she said: “I’m not discussing this publicly.” I demanded that she identify a specific rule I violated, or retract her comment, and she said that she was too busy to address the issue any more.

I e-mailed her last night to repeat my demand for a retraction.

So, notwithstanding any lack of reaction from Verdon or Balko, I appear to have touched a nerve with someone. Read my post to see why that might be.

[Preface…I don’t hate lawyers, no matter how this sounds. I do hate certain lawyer actions.]

What’s the issue here? Aren’t defense lawyers given a free hand to do and say mostly anything in defense of their clients? Lies, subterfuge, creating false scenarios, all things I’ve personally heard to be acceptable, right from lawyers…on both sides of the court room. When the prosecution does it then justice has not been served. But when these actions are done on the behalf of the defendant, it’s just expected procedure. Within boundaries, of course, set out by the participants inside the low railing. I take it that this is all part of creating shadows in the shadow of a doubt construct. I believe the euphemism would be aggressive advocacy.

This free pass for defense attorneys is just one of the myriad of things about the Law that mystifies and rankles non-legal types I have known. Justice as jello. And no, I have no solutions that would be equitable for all. Although we are speaking to criminal law, there is also tax law, civil law, and regulatory codes which have been stretched and tangled far beyond anything comprehensible to a reasonable mind. My personal solution is to do or not do whatever it takes to stay off their radar. But a whole society can’t dive off the pier like I can.

The second ‘and no’ is that I don’t know of any country that does a better job. Doesn’t mean it can’t be improved.

Lawyers send intimidating letters all the time. That’s what they do. Oooh – I got an official looking letter from a big bad LAWYER! A lawyer MUST [no] what she is talking about. I had better do what she says.

Or hire another lawyer to send my own equally stupid threatening response.

NK, is that read left to right or right to left? Conservatives want to ,KNOWNO if we are going right to left because that could be disconcerting and now that I’m concerted being disconcerted would be discomforting.

You are a memeber [sic] of the general public you have no right to be demanding that this child’s autopsy or medical records be turned over to you.

And what is Balko? If that autopsy is going to be part of her case, shouldn’t she be demanding Balko take down the autopsy video? Or is it okay to post parts of the autopsy if it’s done so in a misleading way that favors her client?

Same thing with contacting possible witnesses. How many has Balko contacted and interviewed? Where is her outrage about that?

I believe in Louisiana it is a violation of local ethics rules to refrain from bribing the judiciary, as the ongoing impeachment of United States District Court Judge Porteous will show.
Comment by Cyrus Sanai — 3/3/2009 @ 11:33 am

It is baseless. The lady made the whole thing up. On the Volokh thread, Orin Kerr seems to agree with me about the (lack of) quality of representation the State of Louisiana provides to defendants in post-conviction proceedings.

You are always entitled to effective counsel. If you are indigent, you are not entitled to free counsel except in appeals as of right, absent some other rule. This is not an appeal. This is a post-conviction proceeding, after appeals have been exhausted, and, apparently, since it is a death penalty case the condemned is entitled to appointed counsel.

Or maybe not. When I was doing it on the Illinois’ taxpayers’ dime, I would routinely do follow up discretionary appeals and petitions even though technically my representation should have ended after the direct appeal. Part on my own time and part on clock time.

Has anyone confirmed that Ms. Kelly is herself a member of the bar? It seems hard for me to believe that someone with such poor language skills could pass the exam. (Hell, I’m an engineer and even I can write better than that!)

Her poor language skills, plus this bone-headed threat, makes me wonder if she’s a student intern or a para-legal, whose pompous claim to be that man’s lawyer was exaggeration.

You are not entitled to effective assistance of counsel after trial and direct appeal–and if you are doing this kind of thing for a living, I’d think you would note the distinction between those proceedings and a post-conviction petition such as this one.

And it’s because I did do this for a living (such as it was) that I know that I always had the same duty of care, competence and professionalism, whether on trial, direct appeal, collateral proceedings, retained, appointed or pro bono.

Incidentally, while Ms. Kelly is recklessly threatening to report people to state bars for writing things she doesn’t like or communicating with witnesses, she might want to take a close look at Louisiana Rule of Professional Conduct 4.4:

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . .

To Mr. Frey, Regarding my comments as Mr. Duncan’s counsel this past Sunday. Do I regret it “Yes”. Does it appear I was wrong “Yes”. My intent was not to harm your reputation but I had concerns on protecting my client’s right to a fair hearing. I acted rashly without thinking about it first.
I’m willing to admit that I was wrong on implying you committed any type of ethic violations. Being criticized on blog sites doesn’t bother me. I agree with the fact it was foolish. My only hesitation on posting anything on your blog is that it will only
continue to focus attention on me and continue this instead of ending it. The focus should be on Mr. Duncan’s case not me. I will not read or post any more comments on your site.

Caveat #2: The intent didn’t appear to be harming a reputation as much as suppressing the rights of a private citizen with a (very public) false accusation of impropriety.

Caveat #3: The focus was on Mr. Duncan’s case until that very public accusation. Now, the accusation itself has become the subject of posts from at least three other sites that I’ve seen. Perhaps Ms. Kelly should forego attempts at intimidation in the future.

Caveat #4: Speculation on the motivation behind the apology, to include it being a reaction to Pablo’s specific citation of a potential ethics violation by Ms. Kelly, are still fair game.

Caveat #5: I may have missed it, but did Balko get a comment accusing him of ethics violations and threatening a report to his State Board? If not, I would ask Ms. Kelly why.

Many years ago I did some clerical work as a temp for a legal foundation that filed appeals for death row inmates. I spent most of my day making copies of transcripts and police reports, and in the process realized that most of the appeals were based on nonsense (bogus discrimination claims against prosecutors and officers, fetal alcohol syndrome, insanity pleas, etc.).

I understand that everyone is entitled to a defense, especially when they’re facing execution. I understand that defense attorneys have to make a living, and that sometimes means they must be advocates of unsavory characters. What made my skin crawl was the fact that hanging on the walls throughout the offices, there was framed “artwork” created by murderers, including one particularly infamous kidnapper/double murderer. I thought that was unnecessary and callous toward the victims’ families, regardless of whether they would ever view the musings of people who took the lives of their loved ones.

Because Kathy Kelly said she would never read this blog again, I feel free to say this: Whole Lee Crappe, don’t you have to know basic grammar and spelling in order to be an attorney in Louisiana?